The ethical minefield of using neuroscience to prevent crime

Is it moral to make changes to a person’s brain if it benefits both the offender and society?

A nuerotransmitter breakdown

Photograph by: Graphic
, Vancouver Sun

Second of a three-part series.

On the evening of March 10, 2007, Abdelmalek Bayout, an Algerian citizen living in Italy, brutally stabbed to death Walter Perez, a fellow immigrant from Colombia. Bayout admitted to the crime, saying he was provoked by Perez, who ridiculed him for wearing eye makeup.

According to Nature magazine, Bayout’s defence argued that he was mentally ill at the time of the offence. The court accepted that argument and, although it found Bayout guilty of the crime, imposed on him a reduced prison sentence of nine years and two months.

Bayout nevertheless appealed the judgment, and the Court of Appeal ordered a new psychiatric report. That report showed, among other things, that Bayout had low levels of the neurotransmitter monoamine oxidase A (MAO-A) — an important development given that previous research discovered that men who had low MAO-A levels and who had been abused as children were more likely to be convicted of violent crimes as adults.

Ultimately, the Court of Appeal further reduced Bayout’s sentence by a year, with Judge Pier Valerio Reinotti describing the MAO-A evidence as “particularly compelling.”

Upon a brief review of the scientific evidence, certain glaring problems with the court’s judgment quickly become apparent. Most obviously, the research showing an association between low MAO-A levels and violence tells us nothing about Bayout’s — or any specific individual’s — propensity for violence. Indeed, while a significant percentage of men with low MAO-A levels commit violent offences, the majority do not.

Yet the fact that the court allowed such evidence to influence its verdict suggests that neuroscience, while not eliminating criminal responsibility, might lead courts to conclude that defendants with certain neurological deficits are less responsible than those with “normal” brains.

There is, in fact, a precedent for this, and it’s one that few people question. Adolescents in virtually every country are subject to differential sentencing, and in many cases to an entirely separate system of justice, because their neurobiology renders them less blameworthy, less responsible than adults.

Indeed, while the limbic system, or emotional centre of the brain, is typically mature by the age of 16, the prefrontal cortex, which is associated with one’s capacity to control emotions, is not fully developed, in most people, until the early 20s. Hence according to what’s sometimes called the “two systems” theory, the imbalance in development of the limbic system and the PFC explains the risk taking and emotional behaviour that is characteristic of adolescence. And it justifies our treating adolescents as less responsible than adults.

There are, of course, substantial differences between adolescents and adults with neurological deficits, the most obvious being that most adolescents will outgrow the developmental imbalance. But the basic principle — that people who suffer from neurological aberrations that render them less capable of controlling their behaviour should be held less blameworthy — seems to have swayed the Italian Court of Appeal.

But not just the Italian Court of Appeal. While the “MAO-A defence” has been tried and failed in many courts around the world, recent research led by University of Utah psychologist Lisa Aspinwall suggests that many judges, when presented with neurobiological evidence, are inclined to reduce defendants’ sentences.

Aspinwall and her colleagues presented 181 judges from 19 American states with evidence from a case of a diagnosed psychopath who was convicted of aggravated battery in the vicious assault of a store clerk. All judges were informed of the defendants’ diagnosis but only half were presented with evidence of a biomechanical cause of the defendants’ psychopathy.

Judges were then asked to render an appropriate sentence for the accused. Although the judges considered psychopathy itself an aggravating factor — they imposed significantly longer sentences on the defendant than on non-psychopaths convicted of similar offences — the neurobiological evidence acted as a mitigating factor, as judges who heard such evidence imposed significantly shorter sentences than those unaware of the neuroscience.

This suggests that neuroscience could indeed lead to defendants being found less blameworthy. But such evidence could also backfire, for judges could conclude that the neuroscience shows the defendant is constitutively, irremediably dangerous, and hence must be locked away for a longer period of time to protect the public.

Perhaps, though, neuroscience’s most significant impact will be felt, not on the length of defendants’ sentences, but on the type of sentence they receive. Sentencing in Canada, and in many other countries, has typically vacillated between emphasizing punishment and emphasizing rehabilitation, with the pendulum swinging back and forth in keeping with the mood of the country.

Our current approach to sentencing reflects these disparate and often contradictory approaches: The Criminal Code states that: “The fundamental purpose of sentencing is to contribute ... to respect for the law and the maintenance of a just, peaceful and safe society.” Toward that end, the Code instructs judges to impose sanctions that meet the following objectives: denunciation, deterrence, separation of offenders from society, rehabilitation, reparation and to promote a sense of responsibility in offenders.

Needless to say, these objectives are often at odds with each other, and hence Canada’s approach to sentencing is somewhat incoherent. Judges therefore typically choose, on a case-by-case basis, which objectives to emphasize. But according to many neuroscientists, neuroscience evidence could, or should, tip the scales in favour of a rehabilitative approach toward sentencing.

Support for this approach stems not merely from evidence that many offenders suffer from neurological problems, but from the hope that neuroscience will offer effective treatments for these problems and hence lead to a reduction in offending.

Neuroscientist Peter Reiner, a professor at the National Core for Neuroethics at the University of British Columbia, acknowledges that “the number of things that show promise today is pretty small,” but he outlines three broad areas in which neuroscience could have an impact: drugs, electrical treatments and surgery.

First, since drugs have proven effective in treating some psychiatric conditions, such drugs are now being investigated for their ability to help people control criminal behaviour. The use of drugs is in fact not new: Chemical castration has long been used as a method of treating sex offenders, and although many people might not think of that as neuroscience, Reiner points out that chemical castration dampens the effects of testosterone on the brain.

More recently — and this research is limited — drugs have been investigated for their ability to control other forms of violent behaviour. For example, one recent, relatively small study conducted at Australia’s National Drug Research Institute found that selective serotonin reuptake inhibitors (SSRIs, which are commonly used as antidepressants) significantly reduced in repeat violent offenders problematic behaviours and feelings including impulsivity, irritability, anger, assault and depression.

There also exists a growing field of research investigating the use of drugs to treat substance abuse, which remains one of the main factors contributing to criminal behaviour. Some research has found the opiod receptor antagonist naltrexone effective in reducing cravings for alcohol among alcoholics, while other research has found it effective in blocking the euphoric effects of (but not craving for) opiate drugs, including heroin.

Similarly, in recent years researchers have had some success in developing a cocaine “vaccine,” which prevents the drug from crossing the blood-brain barrier and thereby prevents users from achieving a high upon smoking or snorting the drug.

A second area of research involves the use of neurostimulation such as transcranial direct-current stimulation (tDCS) or transcranial magnetic stimulation (TMS). While tDCS and TMS function somewhat differently, they’re both capable of increasing or decreasing activity in different parts of the brain.

These technologies have been used as treatment for a wide variety of problems including migraines, Parkinson’s disease and to aid in recovery from strokes. They’ve also shown some promise in enhancing certain cognitive abilities like memory and problem solving, and are preferred to many other treatments given that they’re non-invasive and relatively safe, especially compared to procedures such as electroshock therapy (shock treatment).

Although tDCS and TMS are not currently employed in the treatment of offenders, one can conceive of their being used to turn off — or at least tone down — troublesome areas of the brains of individuals with impulse control problems.

That will no doubt prove controversial, but a third area — psychosurgery — has been and continues to be by far the most controversial means of controlling behaviour, given its invasive nature and potential for serious complications.

Nevertheless, it was little more than a half-century ago that Portuguese neurologist Antonio Egas Moniz won the Nobel Prize for Medicine for developing the frontal lobotomy, a psychosurgical procedure aimed at treating psychosis by severing of the connections of the prefrontal cortex.

Given the damage caused by the frontal lobotomy, most countries have ceased using the procedure, and the Nobel Foundation has been repeatedly pressured to rescind its prize to Moniz. Yet several countries continue to perform other forms of psychosurgery, including as a means of treating impulsive or criminal behaviour: In an effort to treat addiction, Russia has recently performed cingulotomies, procedures similar to lobotomies that create lesions on a part of the limbic system known as the anterior cingulate cortex.

Needless to say, such procedures raise serious ethical issues. But in fact all procedures, be they surgical, pharmaceutical or electrical, raise many important ethical questions, questions that ought to be asked and answered before we employ them in treating offenders.

Hank Greely, professor of law and director of the Center for Law and the Biosciences at Stanford University, advises asking two questions before employing any procedure: First, “Does it work?” And second, “How should we use it?”

At this point, research on many of the proposed methods for treating offenders remains in its infancy, and hence it’s too early to conclude that they work. That fact alone should discourage us from employing the procedures, since they might achieve nothing positive but might in fact produce serious side effects.

But the more difficult question arises when evidence suggests certain procedures do work at, for example, reducing violent behaviour in individuals with impulse control problems, which, incidentally, includes the majority of the prison population.

Despite the benefits such procedures could offer both the offenders and society, many people are understandably hesitant to sanction making changes in someone’s brain, especially without the person’s consent — something British Columbia Court of Appeal Justice Ian Donald calls “a terrifying prospect.”

Yet Greely notes that “now we send people to prison, and prison changes their brains” — and one might add that it rarely changes anyone’s brain for the better. Greely further argues that when we send people to prison, or impose any other sanction on them, “we want to change their brains.” And ideally, we want to change their brains in a way that gives offenders better control over their impulses, that makes them more responsible.

Reiner notes that that itself raises a further ethical issue. For if people become more responsible, then they might be judged more harshly in the future. So should society be permitted to make people more responsible against their will? There is substantial evidence that offenders are alive to this issue as some individuals found unfit to stand trial resist treatment for fear they will consequently be declared fit.

More generally, the prospect of using any of these procedures raises questions about people’s right to bodily integrity, their right to be free from unwanted medical procedures. Should those who have violated the criminal law have the right to refuse such procedures? Or should they be forced to endure certain treatments, not only for the protection of society but for their own welfare? Or should they be offered a choice between imprisonment and treatment? And is that a fair choice?

None of these questions admits of an easy answer, but we ought to seek answers since effective neuroscientific therapies could become a reality in a matter of years. And there is one area which raises even more ethical red flags than treatment — and that involves the prediction of behaviour.

One of the primary reasons for preferring treatments is to reduce the likelihood that the offender will reoffend. And the prospect of recidivism is even more important to parole boards, who must consider the protection of the public when considering whether or not to grant an offender parole.

By identifying conditions associated with high risk of reoffending, neuroscience may be of considerable benefit to parole boards.

But if neuroscience one day provides reliable means of predicting behaviour, its use will prove attractive, not merely to those concerned with predicting reoffending, but to those who wish to prevent offending in the first place.

In other words, the spectre of using neuroscience to stop people before they commit crime looms before us. That sounds like the science-fiction movie Minority Report, in which a PreCrime Unit of police officers sought to prevent crime before it occurred.

Yet it’s really not such a fantastic idea even in Canada, as the Anti-terrorism Act previously sanctioned the use of preventive detention for those believed to be about to commit a terrorist act, and the current government has said it plans to bring back such provisions.

Neuroscience is currently not capable of predicting specific criminal behaviours, though Greely suggests that in as little as 10 years we might be capable of predicting whether someone will become a psychopath.

If neuroscience does develop this ability, it won’t tell us anything about any individual behaviour. Yet since less than one per cent of males are psychopaths, and those psychopaths are responsible for an estimated 30-40 per cent of violent crime in society, there will no doubt be pressure to use neuroscience to identify potential psychopaths.

What will we make of this knowledge? Greely notes that preventive detention is a possibility, as are less restrictive measures such as monitoring through GPS. But using any such method seems to fly in the face of our fundamental right to be presumed innocent until proven guilty.

Greely notes that the problem here stems from the fact that we have no way of treating psychopathy: “Early prediction is wonderful if we have a good intervention. But is it good if we can’t do anything about it?” Judy Illes, director of the National Core for Neuroethics at the University of British Columbia, agrees, saying “it seems morally reprehensible to pursue predictions of behaviour, such as aggression and criminality in a child or adolescent, in the absence of responsive resources or a path to modify them.”

All of that said, there is little doubt that some members of government will likely seek to use such information. And that makes it imperative that we seek answers to both the proper ethical and legal uses of the knowledge with which we might soon be imbued. For as our collective knowledge increases, so too does our collective responsibility which means that, whether we like it or not, neuroscience is making us all more, rather than less, responsible.